It Was a Dark and Stormy Night
All around the country, first year law students are staring at the prospect of their final examination in contracts, one of the required courses in the law school curriculum in the United States. So here is a practice question.
A lawyer for David Dennison drafts a memorandum of agreement between Mr Dennison and Stephanie Clifford. The memorandum calls for Ms Clifford to remain silent about a sexual liaison between Mr Dennison and her, in return for payment of $130,000, in “hush money.”
Mr Dennison never signed the putative contract, and he never provided the consideration for Ms Clifford’s silence. The lawyer for Mr Dennison, however, wired Ms Clifford the money, although he apparently was never given the money by his client, or reimbursed for the payment, later1.
Mr Dennison’s lawyer also represents the President of the United States (POTUS). POTUS may well be Mr Dennison, but he has never acknowledged that Dennison was a name he used. Mr Dennison’s lawyer has publicly acknowledged that he provided the money to Ms. Clifford, and that his client Mr Dennison or whoever Mr Dennison is, did not reimburse him2.
The putative contract calls for arbitration and penalties. A company, EC, LLC, obtained a temporary restraining order (TRO) from the designated alternative dispute resolution company. EC, LLC v Peterson, ADR Services TRO (Feb. 27, 2018)3. A week later, Stephanie Clifford sued POTUS (a.k.a. David Dennison) for declaratory relief, in California Superior Court, Los Angeles County, after the TRO was entered. Clifford v. Trump, Calif. Super. Ct., Los Angeles Cty. Complaint (Mar. 06, 2018)4.
Prepare a bench memorandum for the trial court judge who has been assigned the declaratory judgment action. Make sure you address all issues of contract formation and enforcement, affirmative defenses such as the statute of frauds5, as well as professional ethics of the lawyers involved. Address the ethical propriety of POTUS’s lawyer’s paying consideration for a hush contract out of his own pocket and then claiming the benefit of the bargain for his client, as well as the legal consequences of his public disclosure on the enforceability of the putative contract. If you come up with a negotiation strategy for the wife of POTUS to vitiate her pre-nuptial agreements with POTUS, you will receive extra credit.
Watch the upcoming issues of the New York Times for the answer to this practice question.
1 Amy Davidson Sorkin, “Does Stormy Daniels Have a Case Against Donald Trump?” New Yorker (Mar. 7, 2018).
2 Debra Cassens Weiss, “Stormy Daniels sues Trump, says confidentiality deal is void because he didn’t sign it,” Am. Bar. Ass’n J. (Mar. 7, 2018).
3 Jim Rutenberg & Peter Baker, “Trump Lawyer Obtained Restraining Order to Silence Stormy Daniels,” N.Y. Times (Mar. 7, 2018).
4 Rebecca R. Ruiz & Matt Stevens, “Stormy Daniels Sues, Saying Trump Never Signed ‘Hush Agreement’,” N.Y. Times (Mar. 6, 2018).
5 Scott Pilutik, “The Stormy Daniels Lawsuit Is Convoluted to the Point of Paradox: Are we in an adaptation of the film Inception?” Slate News (Mar. 7, 2018); see California Civ. Code 1624(a)(1).
